No. 03-9877
IN THE
Supreme Court of the United States
___________
JON B. CUTTER, ET AL.,
Petitioners,
v.
REGINALD WILKINSON, ET AL.,
___________
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit
___________
BRIEF OF THE AMERICAN CORRECTIONAL
CHAPLAINS ASSOCIATION, FORMER STATE CORRECTIONS OFFICIALS, STATE PRISONERS, PRISON
FELLOWSHIP, JEWISH PRISONER SERVICES INTERNATIONAL, ALEPH, THE AMERICAN CATHOLIC CORRECTIONAL CHAPLAINS ASSOCIATION,
ADVENTIST CHAPLAINCY MINISTRIES, CITIZENS
UNITED FOR THE REHABILITATION OF ERRANTS,
THE JOHN HOWARD ASSOCIATION, SHAMBALA
PRISON COMMUNITY, THE PRISON DHARMA
NETWORK, AND ROBERT C. LYNN AS AMICI
CURIAE IN SUPPORT OF PETITIONERS
__________
GENE C. SCHAERR*
DAVID S. PETRON
RICHARD H. MENARD JR.
MICHAEL C. SOULES
DANIEL I. RABINOWITZ
SIDLEY AUSTIN BROWN
& WOOD LLP
1501 K Street, N.W.
Washington, D.C. 20005
Counsel for Amici Curiae
December 20, 2004
* Counsel of Record
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .........................................
iii
INTEREST OF THE AMICI..........................................
1
SUMMARY OF THE ARGUMENT ............................
2
ARGUMENT.................................................................
4
I. RLUIPA FURTHERS IMPORTANT SECULAR
OBJECTIVES THAT ARE CLOSELY RELATED TO THE FEDERAL INTERESTS
SERVED BY PRISON FUNDING.......................
4
A. RLUIPA Furthers the Secular Objectives of
Accommodating Religious Fellowship and
Worship and of Ensuring that Federal Tax
Dollars Are Not Used to Thwart Religious Exercise.................................................................
5
B. By Promoting the Accommodation of Religious Exercise in Prisons, RLUIPA Facilitates
the Important Objective of Prisoner Rehabilitation .................................................................
10
1. Accommodation of Religious Exercise Aids
Rehabilitation by Helping Prisoners Adjust
to Prison and by Improving Prison Order....
11
2. Accommodation of Religious Exercise in
Prison Furthers the Objective of Reducing
Recidivism ...................................................
13
(i)
ii
II. RLUIPA’S STRICT SCRUTINY STANDARD
HARMONIZES RELIGIOUS ACCOMMODATIONS WITH THE STATES’ COMPELLING INTERESTS IN PRISON SECURITY
AND ORDER........................................................
17
CONCLUSION..............................................................
26
iii
TABLE OF AUTHORITIES
CASES
Page
Agrawal v. Briley, No. 02 C 6807, 2003 WL
22839813 (N.D. Ill. Nov. 25, 2003)...................
19
Aiello v. Frank, No. 03-C-0127-C, 2003 WL
23277415 (W.D. Wis. June 3, 2003) .................
19
Benning v. Georgia, Nos. 04-10979, 04-11044,
2004 WL 2749172 (11th Cir. Dec. 2, 2004)...... 8, 19
Boles v. Neet, 333 F. Supp. 2d 1005 (D. Colo.
2004) ..................................................................
19
Boyd v. Arizona, 87 F.3d 1317 (9th Cir. 1996),
available at 1996 WL 341273 ...........................
21
Case v. Bowles, 327 U.S. 92 (1946)......................
4
Charles v. Frank, 101 Fed. Appx. 634 (7th Cir.),
cert. denied, 125 S. Ct. 479 (2004)....................
23
Charles v. Verhagen, 220 F. Supp. 2d 937 (W.D.
Wis. 2002)..........................................................
23
Charles v. Verhagen, 348 F.3d 601 (7th Cir.
2003) .................................................................. 8, 19
Corporation of Presiding Bishop v. Amos, 483
U.S. 327 (1987)..............................................4, 6, 7, 11
Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2004),
cert. granted, 125 S. Ct. 308 (2004) .................. 6, 7
DeHart v. Horn, No. 03-4250, 2004 WL 2709924
(3d Cir. Nov. 30, 2004)......................................
20
Farrow v. Stanley, No. Civ. 02-567-B, 2004 WL
224602 (D.N.H. Feb. 5, 2004) ...........................
23
Fawaad v. Jones, 81 F.3d 1084 (11th Cir. 1996)..
23
Goodman v. Snyder, No. 00 C 0948, 2003 WL
22765047 (N.D. Ill. Nov. 20, 2003)...................
19
Gordon v. Pepe, No. Civ.A.00-10453-RWZ, 2004
WL 1895134 (D. Mass. Aug. 24, 2004) ............
19
Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996)
22
Hammons v. Saffle, 348 F.3d 1250 (10th Cir.
2003) ..................................................................
20
Jones v. Roth, 950 F. Supp. 254 (N.D. Ill. 1996) ..
23
iv
TABLE OF AUTHORITIES-continued
Page
5
Locke v. Davey, 124 S. Ct. 1307 (2004)................
Loden v. Peters, No. 92 C 20209, 1995 WL
89951 (N.D. Ill. Mar. 1, 1995)...........................
21
Lyng v. Northwest Indian Cemetery Protective
Ass’n, 485 U.S. 439 (1988)................................
9
Mack v. O’Leary, 80 F.3d 1175 (7th Cir. 1996),
vacated on other grounds, 522 U.S. 801 (1997)
22
Madison v. Riter, 355 F.3d 310 (4th Cir. 2003),
petition for cert. filed, 72 U.S.L.W. 3658 (U.S.
2004) (No. 03-1404) ....................................... 5, 19, 26
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir.
2002), cert. denied sub nom. Alameida v. Mayweathers, 124 S. Ct. 66 (2003) .......................... 8, 19
Murphy v. Missouri Dep’t of Corr., 372 F.3d 979
(8th Cir.), cert. denied, 125 S. Ct. 501 (2004) ...
21
Rogers v. Hellenbrand, No. 03-C-230-C, 2004
WL 433976 (W.D. Wis. Mar. 4, 2004), aff’d,
No. 04-1918, 2004 WL 2698957 (7th Cir. Nov.
24, 2004) ............................................................
21
South Dakota v. Dole, 483 U.S. 203 (1987).......... 5, 9, 17
Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)
5
Estate of Thornton v. Caldor, Inc., 472 U.S. 703
(1985).................................................................
7
Turner v. Safley, 482 U.S. 78 (1987) ....................
20
Ulmann v. Anderson, No. Civ. 02-405-JD, 2004
WL 883221 (D.N.H. Apr. 26, 2004)..................
23
University of Great Falls v. NLRB, 278 F.3d 1335
(D.C. Cir. 2002) .................................................
18
Walz v. Tax Comm’n, 397 U.S. 664 (1970) .......... 4, 5
Winters v. State, 549 N.W.2d 819 (Iowa 1996) ....
21
STATUTES AND CONSTITUTION
U.S. Const. art. I, § 8 .............................................
2
v
TABLE OF AUTHORITIES-continued
Page
American Indian Religious Freedom Act, Pub. L.
No. 95-341, 92 Stat. 469 (1978), 42 U.S.C.
§ 1996 ................................................................
9
Prison Litigation Reform Act of 1995, Pub. L.
No. 104-134, tit. VIII, 110 Stat. 1321-66 .......... 24, 25
Religious Freedom Restoration Act of 1993, Pub.
L. No. 103-141, 107 Stat. 1488, 42 U.S.C.
§ 2000bb et seq. .................................................
1
Religious Land Use and Institutionalized Persons
Act of 2000, Pub. L. No. 106-274, 114 Stat.
803, 42 U.S.C. § 2000cc et seq.......................... 1, 24
18 U.S.C. § 3626 ...................................................
24
28 U.S.C. § 1915 ...................................................
24
§ 1915A ................................................
25
42 U.S.C. § 1997e.................................................
24
§ 2000e-1..............................................
7
§ 2000bb-1............................................
20
§ 2000cc-1 ............................................ 1, 8
§ 2000cc-2 ............................................ 21, 24
LEGISLATIVE HISTORY
Hearing Before the Senate Comm. on the Judiciary: Issues Relating to Religious Liberty Protection, and Focusing on the Constitutionality
of a Religious Protection Measure, 106th Cong.
(1999)............................................................. 8, 11, 14
Hearing Before the Subcomm. on Terrorism,
Tech., and Homeland Sec. of Senate Comm. on
the Judiciary, 108th Cong. (2003) .....................
15
146 Cong. Rec. S7776 (daily ed. July 27, 2000)
(Letter from Assistant Attorney General Robert
Raben to the Hon. Orrin Hatch (July 19, 2000))
24
vi
TABLE OF AUTHORITIES-continued
Page
Joint Statement of Senator Hatch and Senator Kennedy on the Religious Land Use and Institutionalized Persons Act of 2000, 146 Cong. Rec.
S7774-76 (daily ed. July 27, 2000) ..........
20, 22, 25
ORDER
Exec. Order No. 13,007, 61 Fed. Reg. 26,771
(May 24, 1996) ..................................................
9
SCHOLARLY AUTHORITIES
Lee Boothby & Nicholas P. Miller, Prisoner
Claims for Religious Freedom and State
RFRAs, 32 U.C. Davis L. Rev. 573 (1999)........
25
Todd R. Clear et al., The Value of Religion in
Prison: An Inmate Perspective, 16 J. Contemp.
Crim. Just. 53 (2000) .........................................
18
Todd R. Clear & Melvina T. Sumter, Prisoners,
Prison, and Religion: Religion and Adjustment
to Prison, 35 J. Offender Rehab. 127 (2002)..... 12, 13
Harry R. Dammer, The Reasons for Religious Involvement in the Correctional Environment, 35
J. Offender Rehab. 35 (2002).............................
12
Jamie Aron Forman, Note, Jewish Prisoners and
Their First Amendment Right to a Kosher
Meal: An Examination of the Relationship Between Prison Dietary Policy and Correctional
Goals, 65 Brook. L. Rev. 477 (1999) ................
14
Derek L. Gaubatz, RLUIPA at Four: Evaluating
the Success and Constitutionality of RLUIPA’s
Prisoner Provisions, 28 Harv. J.L. & Pub.
Pol’y (forthcoming 2005) ..................................
25
vii
TABLE OF AUTHORITIES-continued
Page
Bryon R. Johnson et al., Religious Programs, Institutional Adjustment, and Recidivism Among
Former Inmates in Prison Fellowship Programs, 14 Just. Q. 145 (1997)........................12, 13, 14
Bryon R. Johnson, Religious Programs and Recidivism Among Former Inmates in Prison
Fellowship Programs: A Long-Term FollowUp Study, 21 Just. Q. 329 (2004).......................
13
Thomas P. O’Connor & Michael Perreyclear,
Prison Religion in Action and Its Influence on
Offender Rehabilitation, 35 J. Offender Rehab.
11 (2002)................................................ 12, 13, 15, 16
Margo Schlanger, Inmate Litigation, 116 Harv. L.
Rev. 1555 (2003) ...............................................
25
Melvina T. Sumter, Religiousness and PostRelease Community Adjustment, Graduate Research Fellowship—Executive Summary (Sept.
25, 2000), available at http://www.ncjrs.org/
pdffiles/nij/grants/184509.pdf............................
14
Jody L. Sundt & Francis T. Cullen, The Correctional Ideology of Prison Chaplains: A National Survey, 30 J. Crim. Just. 369 (2002)........
16
Mark C. Young et al., Long-Term Recidivism
Among Federal Inmates Trained as Volunteer
Prison Ministers, 22 J. Offender Rehab. 97
(1995)................................................................. 14, 16
OTHER AUTHORITIES
David Cole, Faith Succeeds Where Prison Fails,
N.Y. Times, Jan. 31, 2001 ................................. 15-16
Dep’t of Corr. Transitional Servs. Div., Volunteer
Programs, at http://www.oregon.gov/DOC/
Trans/religious_services_/rs_vision02.shtml
(last viewed Dec. 15, 2004) ...............................
15
viii
TABLE OF AUTHORITIES-continued
Page
Ari Goldman, Sing Sing Inmates Hail Plan to
Offer Kosher Meals, N.Y. Times, Sept. 6, 1993
Brief of Ohio and Other States as Amici Curiae at
3-8, 17-18, Benning v. Amideo, 2004 WL
2749172 (11th Cir. Dec. 2, 2004) (Nos. 0410979 & 04-11044)............................................
Thomas P. O’Connor et al., Home for Good in
Oregon: A Community, Faith and State Reentry Partnership to Increase Restorative Justice, Corrections Today, Oct. 2004, available at
http://www.oregon.gov/DOC/TRANS/docs/pdf
/home_4_good.pdf .............................................
Don Thompson, Officials: Prison Program Answer to Our Prayers, Miami Herald,
May 13, 2004 .....................................................
10
17
12
13
1
INTEREST OF THE AMICI
Amici curiae, whose identities and individual statements of
interest are provided in the Appendix, are current and former
prison chaplains, former state corrections officials, current
state prisoners, and private religious and civil rights organizations.1 Amici’s diverse experiences with prison-related issues lead them to the common conclusion that the provisions
of the Religious Land Use and Institutionalized Persons Act
of 2000, Pub. L. No. 106-274, 114 Stat. 803 (“RLUIPA”)
(codified at 42 U.S.C. § 2000cc et seq.), at issue in this case
are not only sound as a matter of constitutional law, but very
important as a matter of public policy.2
Specifically, amici believe the elimination of undue governmental constraints on religious exercise by prisoners is a
worthy and important goal that can inure to the benefit not
only of those in confinement, but of the wider society as well.
This goal, moreover, can be realized without significantly
burdening prison administrators and without compromising
prison safety and security—as demonstrated by experience
with RLUIPA itself, with the federal Religious Freedom
Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488
(“RFRA”) (codified at 42 U.S.C. § 2000bb et seq.), and with
numerous religious accommodation policies voluntarily undertaken by the States themselves. Amici submit this brief
because the resolution of this case will decide the fate of a
key safeguard of prisoners’ religious freedom.
1
Pursuant to Rule 37, letters of consent from the parties have been filed
with the Clerk of the Court. In accordance with Rule 37.6, amici state that
no counsel for any party has authored this brief in whole or in part, and no
person or entity, other than amici, has made a monetary contribution to the
preparation or submission of this brief.
2
In this brief, unless otherwise noted, “RLUIPA” refers to section 3 of
the statute, 42 U.S.C. § 2000cc-1, which contains the provisions relating
to institutionalized persons.
2
SUMMARY OF THE ARGUMENT
In RLUIPA, Congress acted to encourage the States to extend to state prisoners an important protection that Congress
had previously granted to federal prisoners in the Religious
Freedom Restoration Act. The various legal challenges to
that effort will be ably and fully rebutted by the parties to this
case and by other amici curiae. Accordingly, rather than attempt a comprehensive defense of RLUIPA, this brief will
draw on amici’s diverse experiences with religious exercise in
prisons generally, and with RLUIPA specifically, to make
two narrow but important points.
First, RLUIPA was designed to further, and does in fact
further, important objectives that “provide for the . . . general
Welfare” (U.S. Const. art. I, § 8), are closely related to the
federal interest in funding state prisons, and are wholly consistent with the Establishment Clause.
As to the latter, this Court has long taught that the accommodation of religious practice by private actors is, by itself, a
legitimate secular purpose of legislation for Establishment
Clause purposes. RLUIPA was enacted for that purpose, and
in that respect is in line with the many legislative accommodations of religious exercise that this Court has upheld over
the years. Correlatively, RLUIPA furthers the legitimate
secular goal of ensuring that federal tax dollars are not used in
a way that undermines federal policy on religious freedom.
But these are not the only ways in which RLUIPA furthers
the general welfare. Congress also understood that, for many
prisoners, the ability to practice their faiths plays a central
role in their ability to rehabilitate themselves while in prison
and after release. Accordingly, by promoting religious accommodation in prisons, RLUIPA promotes the important
secular objective of helping to rehabilitate religiously inclined
prisoners and ex-prisoners. This too is a valid, secular purpose, and its effectuation is therefore a permissible effect.
3
Second, RLUIPA accomplishes these congressional objectives in a way that does not undermine the compelling interests of prison administrators in maintaining order and security
in their institutions. The fear of skeptics and critics of
RLUIPA (and of RFRA before it) that the legislation would
open the door to a flood of bogus and disruptive claims has
not materialized. To the contrary, the statute was expressly
designed not to condone specious claims and not to interfere
with the States’ obviously compelling interest in prison security—and it has not done so.
One reason for that is that the courts have proven well able
to separate the wheat from the chaff. They routinely dismiss
RLUIPA claims that either are insincere or would pose a
credible threat to prison order or safety. Moreover, as illustrated by the claims of the state prisoners who have joined
this brief (and who prevailed in the other courts of appeals
that have upheld RLUIPA), the typical claim under RLUIPA
is not the manipulative or disruptive gambit foreseen by some
opponents of the statute. It is, rather, a reasonable request for
accommodation of a benign religious ritual or practice—such
as a kosher diet or access to prayer oil. Nor has RLUIPA inaugurated a wave of vexatious litigation; in fact, the statute’s
passage saw no discernible increase in the volume of prisoner
lawsuits.
In short, the accommodation of religious liberty that
RLUIPA promotes is both permissible as a matter of constitutional law and sound—or at the very least reasonable—as a
matter of public policy. The Sixth Circuit erred in refusing to
respect the legitimate policy choices that Congress made
when it passed this important statute.
4
ARGUMENT
I. RLUIPA FURTHERS IMPORTANT SECULAR
OBJECTIVES THAT ARE CLOSELY RELATED
TO THE FEDERAL INTERESTS SERVED BY
PRISON FUNDING.
As this Court has held repeatedly, the accommodation of
religious exercise is a legitimate secular purpose that does not
offend the Establishment Clause. See, e.g., Corporation of
Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987) (“it is a
permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions”) (citing
and applying Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)).
The logical corollary, equally grounded in this Court’s decisions, is that the alleviation of government-imposed burdens
on religious exercise is a permissible effect of legislation under the Establishment Clause. See id. at 336-37 (citing
Lemon, 403 U.S. at 612). It could hardly be otherwise; it
would be an odd rule indeed that a purpose is permissible but
its realization is not. Cf. Case v. Bowles, 327 U.S. 92, 102
(1946) (“Since the decision in McCulloch v. Maryland, it has
seldom if ever been doubted that Congress has power in order
to attain a legitimate end . . . to use all appropriate means
plainly adapted to that end, unless inconsistent with other
parts of the Constitution.”) (internal citation omitted). Accordingly, this Court’s decisions leave no doubt that the easing of state-imposed burdens on private religious practice
does not have the “principal or primary effect” of advancing
religion. E.g., Amos, 483 U.S. at 336-37; Walz v. Tax
Comm’n, 397 U.S. 664, 668 (1970).
As explained below, RLUIPA has both the purpose and the
principal effect of lifting (or encouraging States to lift) government-imposed burdens on religious exercise by prisoners,
while at the same time ensuring that programs supported by
federal tax dollars do not unnecessarily thwart religious exer-
5
cise. RLUIPA also furthers the important objective of facilitating the rehabilitation of prisoners in whose lives religion
plays an important role. All of these are permissible purposes
and effects for purposes of the Establishment Clause. For
purposes of the Spending Clause, all of these objectives likewise promote the general welfare and are plainly “related” to
the “federal interest” in funding state prison programs. South
Dakota v. Dole, 483 U.S. 203, 207 (1987) (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality
op.)).
A. RLUIPA Furthers the Secular Objectives of Accommodating Religious Fellowship and Worship
and of Ensuring that Federal Tax Dollars Are
Not Used to Thwart Religious Exercise.
1. The cardinal purpose of RLUIPA—“alleviation of government burdens on prisoners’ religious exercise,” Madison v.
Riter, 355 F.3d 310, 317 (4th Cir. 2003)—is a legitimate
secular objective sanctioned by this Court’s long-standing
Establishment Clause jurisprudence. As this Court reaffirmed
only last term, there is ample room for “play in the joints”
between the Establishment Clause and the Free Exercise
Clause of the First Amendment. Locke v. Davey, 124 S. Ct.
1307, 1311 (2004); see also Walz, 397 U.S. at 669. Thus,
“[t]he limits of permissible state accommodation to religion
are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.” Walz, 397 U.S. at 673.
Accord Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8
(1989) (plurality op.) (disclaiming the proposition that all
“benefits conferred exclusively upon religious groups or upon
individuals on account of their religious beliefs are forbidden
by the Establishment Clause unless they are mandated by the
Free Exercise Clause”). Accordingly, even without a predicate free exercise violation, “[u]nder the Lemon analysis, it is
a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations”—and individuals as well—“to define and carry out
6
their religious missions.” Amos, 483 U.S. at 335. And Congress therefore has “ample room under the Establishment
Clause” to lift governmentally imposed burdens on private
religious exercise. Id. at 334.
The achievement of that purpose is also a permissible “effect” for purposes of the Lemon analysis, as a comparison to
Amos demonstrates. In Amos, the Court found not only that
accommodating religion was a valid secular purpose, but that
the specific exemption at issue there—the Title VII exemption for religious employers—did not violate the other two
parts of the Lemon test. As to the “effects” inquiry, the Court
held that the exemption did not have the principal or primary
effect of advancing religion because Congress itself was not
advancing religion: “For a law to have forbidden ‘effects’
under Lemon, it must be fair to say that the government itself
has advanced religion through its own activities and influence.” Id. at 337. Rather, the Title VII exemption “allows
churches to advance religion, which is their very purpose,” id.
(emphasis added, emphasis in original omitted), and the exemption cannot be unconstitutional for that reason.3
Contrary to the Sixth Circuit’s analysis, Cutter v. Wilkinson, 349 F.3d 257, 263-64, 267 (6th Cir. 2004), RLUIPA satisfies the effects requirements of Lemon even more readily
than did the Title VII exemption in Amos. In eliminating unnecessary government interference with religious exercise,
RLUIPA does not—as a facial matter—have the primary effect of advancing religion. Instead, by its terms RLUIPA
simply helps religious prisoners themselves exercise their liberty to practice their faiths. No government “activities and
3
Furthermore, the exemption created no excessive entanglement of
church and state because it “effectuate[d] a more complete separation of
the two and avoid[ed] the kind of intrusive inquiry into religious belief.”
483 U.S. at 339.
7
influence” are necessarily enlisted to advance the cause of
religion. 483 U.S. at 337.4
It also bears emphasizing that, despite the wide range of religious practices to which RLUIPA applies, see Cutter, 349
F.3d at 263, the statute is far narrower than the Title VII exemption in one crucial respect. The Title VII exemption applies categorically to all activities of non-profit religious employers whether or not the activities are directly related to the
employer’s religious operations. See Amos, 483 U.S. at 332
n.9 (describing 1972 amendment to Title VII expanding the
scope of the exemption); see also 42 U.S.C. § 2000e-1. Despite some prior suggestions that such “exceptionless” accommodations may in some circumstances violate the Establishment Clause, see Estate of Thornton v. Caldor, Inc., 472
U.S. 703, 709-10 (1985), the Amos Court upheld the Title VII
exemption.
By comparison, the accommodation of religious practice
mandated by RLUIPA is less exacting because the rights secured by RLUIPA are contingent on the institution’s ability to
maintain order and security. By allowing a prison to defeat a
claim under the statute’s compelling interest standard, Section
4
To be sure, accommodation of religious exercise, like everything else
in prison, requires some action by the State. That is the nature of prison; a
prisoner cannot do anything—eat, sleep, shower, read, write, have a phone
conversation—without the State’s active involvement. But within that
necessarily hands-on environment, RLUIPA calls on the State to assume a
decidedly hands-off posture relative to religious practice: not to become
involved in religious exercise, but to make reasonable allowances for private religious exercise. The fact that such allowances, like everything in
prison, may entail some affirmative steps by the State has no bearing on
the constitutional analysis.
Similarly, there can be no serious argument that RLUIPA somehow
creates an impermissible entanglement of church and state. On the contrary, RLUIPA requires prison officials to accommodate all religious believers (including minority believers) in a neutral fashion, and that neutrality helps to avoid situations in which interference with particular religious practices might yield an excessive entanglement.
8
3 of RLUIPA forges a balance between prisoners’ important
interest in exercising religion and compelling interests of the
State. 42 U.S.C. § 2000cc-1(a) (setting forth compelling interest standard); see also infra Section II. And, unlike the
sometimes significant burdens on others that are entailed by
the Title VII exemption in Amos, the burdens RLUIPA imposes on prison administrators are quite modest, usually involving little more than a reallocation of allotted resources.
Thus, RLUIPA’s satisfaction of the “purpose” and “effects”
analyses required under Lemon follows a fortiori from Amos.
2. RLUIPA also furthers the related secular objective of
ensuring that federal tax dollars do not support state programs
that unnecessarily thwart religious exercise. As one commentator put it during the congressional hearings, “[t]he Federal interest here is simply . . . that Federal funds should not
be used unnecessarily to impose burdens on religious exercise.” Hearing Before the Senate Comm. on the Judiciary:
Issues Relating to Religious Liberty Protection, and Focusing
on the Constitutionality of a Religious Protection Measure,
106th Cong. 73 (1999) (“Hearing”) (statement of Douglas
Laycock, University of Texas School of Law). As the Ninth
Circuit has recognized, “Congress has a strong interest in
making certain that federal funds do not subsidize conduct
that infringes individual liberties, such as the free practice of
one’s religion. . . . Congress may allocate federal funds freely,
then, to protect the free exercise of religion . . . .” Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002), cert.
denied sub nom. Alameida v. Mayweathers, 124 S. Ct. 66
(2003). Accord Charles v. Verhagen, 348 F.3d 601, 608-09
(7th Cir. 2003). Or, as the Eleventh Circuit recently put it,
even where a state prison is not violating inmates’ federal free
exercise rights, “Congress has every right to ensure that state
prisons that accept federal funds respect the religious freedom
of prisoners.” Benning v. Georgia, Nos. 04-10979 & 0411044, 2004 WL 2749172, at *6 (11th Cir. Dec. 2, 2004).
9
Indeed, Congress may legitimately act to ensure that federal
funds are not used to inhibit religious exercise just as surely
as the federal government may administer federal lands in a
manner that does not obstruct religious practices. See Lyng v.
Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439,
454 (1988) (“The Government’s rights to the use of its own
land . . . need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents.”). In fact, Congress has enacted legislation
requiring the federal government to protect the rights of Native Americans to exercise traditional religions through “access to sites” and “the freedom to worship through ceremonials and traditional rites.” American Indian Religious Freedom Act, Pub. L. No. 95-341, § 1, 92 Stat. 469, 469 (1978)
(codified at 42 U.S.C. § 1996). Similarly, the executive
branch has directed that, in managing federal lands, responsible executive branch agencies shall, to the extent practicable,
“(1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites.”
Exec. Order No. 13,007, § 1, 61 Fed. Reg. 26,771, 26,771
(May 24, 1996). Just as the federal government may accommodate religious exercise through the administration of federal lands—a practice this Court sanctioned in Lyng—so too
may Congress promote the general welfare by advancing the
accommodation of religious exercise through federal funding.
For all these reasons, ensuring the appropriate use of federal funds is yet another valid secular purpose and effect of
RLUIPA. And it is obviously closely related to the “federal
interest” in funding state prisons, which would be undermined
if those prisons used fungible federal funds, in part, to thwart
federal policy on religious freedom. Dole, 483 U.S. at 207.
10
B. By Promoting the Accommodation of Religious
Exercise in Prisons, RLUIPA Facilitates the Important Objective of Prisoner Rehabilitation.
Apart from the legitimate Congressional interest in freedom
of religion as such, the accommodation of religious exercise
in prisons produces significant corollary benefits, which Congress recognized in passing RLUIPA and which the statute
demonstrably advances. Incarceration imposes profound
handicaps on the ability of religious individuals to observe
their faiths. Apart from private prayer, even the most basic
forms of religious exercise, such as worship and devotional
study—let alone such things as religiously mandated diet and
dress—simply are not possible without the state’s affirmative
acquiescence.
One consequence is that persons for whom religion provides solace and stability are deprived of that outlet, and in a
circumstance in which they may need solace and stability
more than ever. As one prison administrator put it, prisoners
“‘don’t have many hope pegs to hang your being on’
. . . ‘Religion is one of those hope pegs.’” Ari Goldman,
Sing Sing Inmates Hail Plan to Offer Kosher Meals, N.Y.
Times, Sept. 6, 1993, at 20.
Unsurprisingly, then, to the extent religiously inclined prisoners are relieved of the burden on religious exercise that ordinarily accompanies incarceration, those prisoners tend to be
better equipped to deal with the severity of imprisonment, and
more well-adjusted both in prison and out, than they would be
without that accommodation. Indeed, as shown below, a
growing body of research indicates that, for prisoners for
whom religion is an important part of life, accommodating
religious exercise tends both to ease the adjustment to prison
life and to facilitate rehabilitation. By ensuring that the exer-
11
cise of religion behind prison walls is not unnecessarily fettered, RLUIPA advances these important objectives.5
1. Accommodation of Religious Exercise Aids
Rehabilitation by Helping Prisoners Adjust
to Prison and by Improving Prison Order.
In the experience of amici, one of the principal roles that
religious accommodation can play in prisons is to help prisoners adjust to the harshness of the prison environment. In
debating the legislation that became RLUIPA, even opponents of the statute conceded the important rehabilitative role
played by accommodating religious exercise.
[E]very correction administrator in the country recognizes the vital role played by most religious practices
and beliefs in furthering inmate rehabilitation, in maintaining a sense of hope and purpose among individual
inmates and in enhancing overall institutional safety and
well-being. Most inmates who sincerely practice their
religious beliefs do not pose institutional problems.
Rather, as a rule of thumb, they promote institutional
stability.
Hearing, at 175 (statement of Glenn S. Goord, Commissioner,
New York State Department of Correctional Services).
Recent studies indicate that religious accommodation is
profoundly important to the rehabilitation of many prisoners.
For one thing, those studies show that genuine religious practice is widespread, deeply influencing the day-to-day lives of
a great many prisoners. For example, a major study of relig5
This is not to say that religious accommodations are valuable only—
or even primarily—because of their instrumental value. Religious liberty
is the first freedom guaranteed by the Bill of Rights, and accommodating
religion is inherently important. See, e.g., Amos, 483 U.S. at 334 (noting
history of protection for religious freedom in the United States). Thus,
even if a particular religious exercise produced no rehabilitative or other
impact on prisoners or society at large, accommodating that religious exercise would always be an invaluable protection of prisoners’ civil rights.
12
ious activity in a large South Carolina prison found that
“[r]eligious practice in prison can be very extensive with
about 50% of inmates attending religious services an average
of six times per month.” Thomas P. O’Connor & Michael
Perreyclear, Prison Religion in Action and Its Influence on
Offender Rehabilitation, 35 J. Offender Rehab. 11, 28 (2002).
And a recent census of Oregon state prisoners showed that 52
percent of them are involved in religious activities. Thomas
P. O’Connor et al., Home for Good in Oregon: A Community,
Faith and State Re-entry Partnership to Increase Restorative
Justice, Corrections Today, Oct. 2004, at 73, available
at http://www.oregon.gov/DOC/TRANS/docs/pdf/home_4_
good.pdf; see also Bryon R. Johnson et al., Religious Programs, Institutional Adjustment, and Recidivism Among Former Inmates in Prison Fellowship Programs, 14 Just. Q. 145,
146 (1997) (noting that a 1991 survey showed that “nearly
one inmate in three is involved in religious programs”).
The evidence suggests, and amici’s own experience confirms, that such activities have a substantial impact. A national study of the role of religion in the adjustment to prison,
which surveyed prisoners at 20 prisons, found that religiosity
(measured as a composite of religious activity, attitudes, and
beliefs) was positively correlated with self-esteem and with
the degree to which prisoners felt adjusted to prison. Todd R.
Clear & Melvina T. Sumter, Prisoners, Prison, and Religion:
Religion and Adjustment to Prison, 35 J. Offender Rehab.
127, 150-51 (2002). These religiously active prisoners were
also less likely to suffer from depression. Id. at 151; see also
Harry R. Dammer, The Reasons for Religious Involvement in
the Correctional Environment, 35 J. Offender Rehab. 35, 41
(2002) (describing how many prisoners achieve “peace of
mind” from religious observance, which is “important for the
psychological survival of inmates”).
The benefits of religious accommodation extend beyond the
religious prisoners themselves. One study found that religiosity is often a “principal determinant” in the number of dis-
13
ciplinary infractions that a prisoner receives, with fewer infractions among those prisoners who have greater religious
activity and belief. Clear & Sumter, supra, at 154. These
findings mirror those of the South Carolina study, which concluded that “the more religious sessions an inmate attended,
the less likely he was to have an [in-prison] infraction.”
O’Connor & Perreyclear, supra, at 26.6
The recent experience of a California prison provides another stark example of the potential impact of religious accommodation on prisoners’ adjustment to prison life. That
prison, which had long been plagued by gang violence, experienced a sharp drop in the number of riots and other violent
incidents after a large group of its prisoners participated in a
religious studies program. Don Thompson, Officials: Prison
Program Answer to Our Prayers, Miami Herald, May 13,
2004, at 7. As one administrator put it, the religious program
within that prison “‘has definitely played a role’” in reducing
in-prison violence. Id.
2. Accommodation of Religious Exercise in
Prison Furthers the Objective of Reducing
Recidivism.
In the experience of amici, religious accommodation also
reduces recidivism among those who choose to participate in
religious services and other activities. And once again, this
experience is supported by the available evidence. See
O’Connor & Perreyclear, supra, at 28-29.
For example, a study comparing recidivism rates of
prisoners participating in an intensive prison ministry
6
The few studies that have detected no statistical differences in prisoner behavior typically were not measuring overall religious participation
but were instead comparing participants within a specific program versus
those without. See, e.g., Johnson et al., supra, at 149-50; Bryon R. Johnson, Religious Programs and Recidivism Among Former Inmates in
Prison Fellowship Programs: A Long-Term Follow-Up Study, 21 Just. Q.
329, 336-38 (2004).
14
program with the general prison population found
significantly lower long-term (eight- to fourteen-year)
recidivism rates among program participants. Mark C. Young
et al., Long-Term Recidivism Among Federal Inmates
Trained as Volunteer Prison Ministers, 22 J. Offender Rehab.
97, 104, 110-11 (1995). Another study, using follow-up data
on prisoners who had been incarcerated in twelve prisons
around the country, found that those who had participated
regularly in religious activities had significantly lower
recidivism rates in the six and a half years following their
release. Melvina T. Sumter, Religiousness and Post-Release
Community Adjustment, Graduate Research Fellowship—
Executive Summary 10 (Sept. 25, 2000), available at
http://www.ncjrs.org/pdffiles1/nij/grants/184509.pdf. And a
study of participants in a ministry operating in four New York
state prisons found that greater participation was linked to
lower rates of re-arrest in the year following the prisoners’
release. Johnson et al., supra, at 160. Indeed, one
commentator opined that “[s]piritual development and
religious study are perhaps ‘the most valuable tools for
rehabilitation and to prevent recidivism.’” Jamie Aron
Forman, Note, Jewish Prisoners and Their First Amendment
Right to a Kosher Meal: An Examination of the Relationship
Between Prison Dietary Policy and Correctional Goals, 65
Brook. L. Rev. 477, 484 & n.45 (1999) (quoting Hearings on
the Need for Fed. Prot. of Religious Freedom After Boerne v.
Flores Before the Comm. on the Judiciary, 105th Cong. 5
(1998) (statement of Isaac M. Jaroslawicz, Director of Legal
Affairs for the Aleph Institute)).
Congress clearly had in mind such secular benefits when it
sought to promote the accommodation of religion in the
prison context. As one Senator put it, accommodating the
religious practices of prisoners “helps rehabilitate them and
makes them less likely to commit crime after they are
released.”
Hearing at 20 (statement of Sen. Strom
Thurmond).
15
Many of the benefits of religious exercise in prison can be
traced to the extensive contact between prisoners and
volunteers, who tend to be “a group of people who ha[ve]
learned how to successfully negotiate and derive satisfaction
from the different worlds of work, family, education, politics,
and religion.” O’Connor & Perreyclear, supra, at 20. Given
that “offenders tend to have trouble negotiating these areas of
life, and . . . problems in these areas are predictive of crime
and recidivism,” positive interactions with volunteers fills a
crucial need in many prisoners’ lives. Id. Amici’s own
experience confirms that religious volunteers are important
exemplars of social stability for prisoners.
Religiously-motivated volunteers, moreover, make up the
largest cohort of volunteers working in prisons. For example,
77 percent of the volunteers in the Oregon prison system last
year were associated with the Religious Services department.
See Dep’t of Corr. Transitional Servs. Div., Volunteer
Programs, available at http://www.oregon.gov/DOC/TRANS/
religious_services/rs_vision02.shtml (last viewed Dec. 15,
2004). The 1500 volunteers associated with Religious
Services donated over 100,000 hours of work, the equivalent
of 55 full-time employees. Id. Similarly, the South Carolina
study found that “232 [religious] volunteers donated about
21,316 hours of work to the prison: the equivalent of 11 fulltime paid positions.” O’Connor & Perreyclear, supra at 23;
see also Hearing Before the Subcomm. on Terrorism, Tech.,
and Homeland Sec. of the Senate Comm. on the Judiciary,
108th Cong. 32 (2003) (statement of Paul Rogers, President,
American Correctional Chaplains Association) (noting that
“[o]f civilians who choose to participate in various prison
activities, the vast majority is Religious Program
volunteers”). Indeed, “in many prisons, the only groups
engaged in rehabilitative programs are religious ones.” David
16
Cole, Faith Succeeds Where Prison Fails, N.Y. Times, Jan.
31, 2001, at A21.7
Furthermore, prisoners’ involvement in religious activities
allows them to interact with prison chaplains, a group institutionally dedicated to the goal of prisoner rehabilitation. Jody
L. Sundt & Francis T. Cullen, The Correctional Ideology of
Prison Chaplains: A National Survey, 30 J. Crim. Just. 369,
377-78 (2002). In amici’s experience, regular, voluntary
contact with prison chaplains likewise tends to reduce both
short-term and long-term recidivism.
Further study is required to understand fully the dynamics
at work here. But the evidence, confirmed by amici’s own
experience, demonstrates that voluntary religious programs
are “a potent and a cost-effective resource in the national effort to reduce the negative effects of crime on individuals and
the community.” Young et al., supra, at 115. Taken together,
current research suggests that these programs “must be considered in the mix of variables and ‘best correctional practices’ related to offender rehabilitation,” O’Connor & Perreyclear, supra, at 30. Indeed, at a time when “we have all but
given up on rehabilitation as ‘soft on crime,’” voluntary religious programs offer an important alternative for rehabilitating prisoners in preparation for their re-entry into society.
Cole, supra, at A21.
For all these reasons, the accommodation of religious exercise in prison—within relevant constitutional limits—is of
surpassing importance. It is a legitimate secular purpose and
effect for purposes of the Establishment Clause. And it promotes the general welfare in a way that is closely related to
the federal interest in supporting state prisons, including the
7
Such volunteer programs are also cost-effective. While other effective rehabilitation programs cost in the range of $14,000 per prisoner per
year, the South Carolina study found that the annual cost of programs using religious volunteers “could be considered a bargain at about $150 to
$250 per inmate served.” O’Connor & Perreyclear, supra, at 23.
17
strong federal interest in rehabilitation. See Dole, 483 U.S. at
207.
Congress, therefore, was right to decide that accommodation of religious exercise would make valuable contributions
to the penal system as well as the lives of individual prisoners. At a minimum, that judgment was a reasonable one, and
the Sixth Circuit erred in second-guessing it.
II. RLUIPA’S STRICT SCRUTINY STANDARD
HARMONIZES RELIGIOUS ACCOMMODATIONS WITH THE STATES’ COMPELLING INTERESTS IN PRISON SECURITY AND ORDER.
Notwithstanding the important benefits RLUIPA provides
to prisoners and society, opponents of the statute maintain
that it is unwise and dangerous as a matter of policy. Such
arguments take several forms, but the common motif is that
the statute threatens prison order and security by upsetting the
balance of power between prisoners and administrators.
Aside from their irrelevance to the constitutional questions
before the Court,8 these criticisms are demonstrably wrong as
a factual matter. Despite the rhetorical force of the image of
mass conversion to the “Church of the Filet Mignon”—or,
more gravely, racist and dangerous activity undertaken under
the banner of religion—the reality is far different. As illustrated by the claims of the prisoner amici here, typical claims
brought under RLUIPA are in fact sincere, modest, and be8
For one thing, arguments of those sort are, at bottom, a policy dispute
with Congress. For another, they generally constitute as-applied challenges masquerading as facial challenges. See, e.g., Brief of Ohio and
Other States as Amici Curiae at 3-8, 17-18, Benning v. Amideo, 2004 WL
2749172 (11th Cir. Dec. 2, 2004) (Nos. 04-10979 & 04-11044) (discussing the potential for prison violence that inheres in some ostensibly religious objects and practices, and asserting that violent prisoners sometimes
manipulate and abuse religious rights). The question whether a particular
accommodation should be granted under RLUIPA is not relevant to the
facial challenge at issue here.
18
nign. And RLUIPA leaves the States with ample legal tools
to handle any risks that religious accommodation might otherwise create in the prison setting.
1. As a factual matter, there is little support for the cynical
view that prisoners resort to religion to secure special consideration from authorities. In one recent study, researchers
were surprised to find very little evidence suggesting that
prisoners were opportunistically using religion to achieve
privileges or fewer restrictions inside their facilities. Todd R.
Clear et al., The Value of Religion in Prison: An Inmate Perspective, 16 J. Contemp. Crim. Just. 53, 63 (2000). According to these researchers, “[r]eligiously active inmates flatly
denied that they received special treatment by parole or prison
authorities.” Id. Significantly, even non-religious prisoners
doubted that religious activity actually led to special favors
within the prison. Id.
If anything, religious exercise often involves burdens that a
prisoner would not undertake in the absence of authentic religious faith. To cite a common example, the kosher requirements of some prisoners are frequently accommodated with a
cold “common fare” meal. The religious prisoner must therefore sacrifice a hot meal in favor of a cold one that does not
violate religious dietary laws. Fasting and other ascetic traditions that can be accommodated in prison similarly entail significant sacrifices on the part of the prisoner. And, prisoners
professing religious beliefs are sometimes subject to taunts
and derisive comments by other, non-religious prisoners.
In these and other ways, an expressed desire for a religious
accommodation—which is a predicate for a claim under
RLUIPA—carries with it costs and burdens that will themselves have a tendency to discourage phony claims. Cf. University of Great Falls v. NLRB, 278 F.3d 1335, 1344 (D.C.
Cir. 2002) (noting that the costs associated with religious
identification “will act as a check on institutions that falsely
identify themselves as religious merely to obtain exemption
from the [National Labor Relations Act].”). Thus, as the
19
available evidence shows (and as the experience of amici confirms), there is in reality little risk that prisoners would, to any
significant degree, engage in sham religious exercises or expressions of religious belief.
2. In the experience of amici, moreover, the vast majority
of claims under RLUIPA involve religious practices that pose
no colorable threat to prison order or security. The anecdotes
and hypotheticals often invoked by RLUIPA’s opponents are
far less typical than the claims brought by the prisoner amici
here, who prevailed in the other federal courts of appeals that
have upheld RLUIPA’s constitutionality. See Benning, 2004
WL 2749172; Madison, 355 F.3d at 317-22; Charles, 348
F.3d at 611; Mayweathers, 314 F.3d 1062. Those cases involved requests for a kosher diet (Ira Madison and Ralph
Benning); for prayer oil (Jerry Charles); for permission to attend weekly religious services (the Mayweathers plaintiffs);
for permission to wear a yarmulke (Mr. Benning); and for
permission to wear religiously significant beards (the Mayweathers plaintiffs).9
Although these kinds of requests pose no colorable threat to
prison security, they are often denied by prison administrators. As two of RLUIPA’s Senate sponsors put it, “prison
officials sometimes impose frivolous or arbitrary rules.
Whether from indifference, ignorance, bigotry, or lack of re9
See also, e.g., Agrawal v. Briley, No. 02 C 6807, 2003 WL 22839813,
at *3 (N.D. Ill. Nov. 25, 2003) (denying motion to dismiss RLUIPA claim
by Hindu prisoner for religious diet); Gordon v. Pepe, No. Civ.A.0010453-RWZ, 2004 WL 1895134, at *4 (D. Mass. Aug. 24, 2004) (allowing RLUIPA claim for religiously motivated vegetarian diet); Boles v.
Neet, 333 F. Supp. 2d 1005, 1010 (D. Colo. 2004) (allowing RLUIPA
claim for refusal to allow Jewish prisoner to wear religious garments
while being transported for medical treatment); Goodman v. Snyder, No.
00 C 0948, 2003 WL 22765047 (N.D. Ill. Nov. 20, 2003) (allowing
RLUIPA claim for religious diet and tarot cards); cf. Aiello v. Frank, No.
03-C-0127-C, 2003 WL 23277415, at *1 (W.D. Wis. June 3, 2003)
(granting prisoner leave to state RLUIPA claim for denial of tallith, yarmulke, and prayer book).
20
sources, some institutions restrict religious liberty in egregious and unnecessary ways.” 146 Cong. Rec. S7774, S7775
(daily ed. July 27, 2000) (joint statement of Senators Hatch
and Kennedy (“Joint Statement”)).
Moreover, relief often cannot be had under the First
Amendment alone, which requires only that a prison regulation be “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). See, e.g.,
DeHart v. Horn, No. 03-4250, 2004 WL 2709924, at *6, *11
(3d Cir. Nov. 30, 2004) (affirming grant of summary judgment for defendants on Buddhist prisoner’s First Amendment
claim for religious diet, citing “the Prison’s legitimate interest
in efficient food provision” and finding that accommodation
would impose more than “a minimal burden on the Prison,”
but remanding for consideration of corresponding claims under RLUIPA); cf. Hammons v. Saffle, 348 F.3d 1250, 125558 (10th Cir. 2003) (affirming grant of summary judgment for
defendants as to prisoner's First Amendment claim based on
denial of access to prayer oil, but remanding to the district
court for consideration of identical claim under RLUIPA).
Thus, in the run of cases, RLUIPA satisfies a substantial need
for prisoner-claimants while posing very little risk to sound
prison administration.
3. Just as importantly, RLUIPA erects substantial obstacles
that prisoners must overcome before they can win an accommodation. And the track record of both RLUIPA and RFRA,
which is identical to RLUIPA in the relevant respects,10
shows that those obstacles are both real and effective at preserving prison security and discipline.
10
See 42 U.S.C. § 2000bb-1(b) (RFRA § 3(b)) (“Government may substantially burden a person’s exercise of religion only if it demonstrates
that application of the burden to the person—(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.”).
21
First, the statute places on the prisoner the burden of establishing both the sincerity of his religious claim and the substantial burden imposed by the challenged regulation. 42
U.S.C. § 2000cc-2(b) (“the plaintiff shall bear the burden of
persuasion on whether the law (including a regulation) or
government practice that is challenged by the claim substantially burdens the plaintiff’s exercise of religion”); see also
Murphy v. Missouri Dep’t of Corr., 372 F.3d 979, 988 (8th
Cir.) (“RLUIPA requires that Murphy show, as a threshold
matter, that there is a substantial burden on his ability to exercise his religion.”), cert. denied, 125 S. Ct. 501 (2004). This
is not empty verbiage: under both RLUIPA and RFRA, the
courts have proved perfectly capable of filtering out insincere
claims and insubstantial burdens at the pleading or summary
judgment stage. See, e.g., Boyd v. Arizona, 87 F.3d 1317
(9th Cir. 1996) (table), 1996 WL 341273, at *2 (affirming
grant of summary judgment in favor of prison officials who
had denied prisoner’s request under RFRA to “study scriptures with his wife daily, hold family prayer with his wife
daily, . . . and render physical affection to his wife while he is
in prison”); Rogers v. Hellenbrand, No. 03-C-230-C, 2004
WL 433976, at *1, *6 (W.D. Wis. Mar. 4, 2004) (granting
partial summary judgment on prisoner’s RLUIPA claim
predicated on supposedly religious “auditory and visual hallucinations,” where “plaintiff has failed even to adduce evidence identifying his religious beliefs or indicating how he
practices or observes his religion”), aff’d, No. 04-1918, 2004
WL 2698957 (7th Cir. Nov. 24, 2004); Winters v. State, 549
N.W.2d 819, 820-21 (Iowa 1996) (affirming dismissal of
RFRA claim by white supremacist prisoner that sharing a cell
with an African-American prisoner substantially burdened his
religious exercise); Loden v. Peters, No. 92 C 20209, 1995
WL 89951, at *10 & n.4 (N.D. Ill. Mar. 1, 1995) (under
RFRA, holding that denial of prisoner’s request to worship
nude in a prison chapel did not substantially burden his religious exercise).
22
Second, the rights secured by RLUIPA (in contrast to many
religious exemptions) are not absolute but contingent. Far
from creating an unconditional right to religious exercise,
RLUIPA explicitly assigns countervailing weight to the burdens on prison administrators. Because the statute’s “compelling interest” and “least restrictive means” inquiries are
inherently contextual, their application to a given case will
necessarily take account of any relevant institutional exigencies. As the Senate sponsors of RLUIPA explained, “[t]he
compelling interest test is a standard that responds to facts
and context.” Joint Statement, 146 Cong. Rec. at S7774,
S7775.
The compelling interest standard leaves ample room for
deference to prison officials on matters of prison security.
Indeed, RLUIPA’s Senate sponsors clearly indicated their expectation “that courts will continue the tradition of giving due
deference to the experience and expertise of prison and jail
administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Id.
at S7775 (internal quotation marks omitted).
The lower courts, moreover, have had no difficulty acting
in accordance with this expectation. As the Seventh Circuit
aptly noted in a RFRA decision that applies equally to
RLUIPA, “maintaining order in prisons is a compelling governmental interest and one that frequently requires and so
justifies limitations on freedom of religious conduct.” Mack
v. O’Leary, 80 F.3d 1175, 1180 (7th Cir. 1996), vacated on
other grounds, 522 U.S. 801 (1997); accord Hamilton v.
Schriro, 74 F.3d 1545, 1554 (8th Cir. 1996) (“a court applying RFRA must give due deference to the expertise of prison
officials in establishing regulations to maintain prison safety
and security, even when the court applies a ‘heightened’ standard of review”).
Here again, the substantial number of unsuccessful prisoner
claims under RLUIPA and RFRA bear out Congress’s ex-
23
pectation, even as they demonstrate that the strict scrutiny
standard, faithfully applied to the special circumstances of a
prison, amply protects the States’ compelling interest in
prison order and security. See, e.g., Charles v. Frank, 101
Fed. App. 634, 636 (7th Cir.) (holding that denial of prisoner’s request to wear prayer beads satisfied strict scrutiny
because “suppressing the open display of religious emblems
is necessary to stop gangs from usurping them as indicia of
membership”), cert. denied, 125 S. Ct. 479 (2004); Fawaad v.
Jones, 81 F.3d 1084, 1087 (11th Cir. 1996) (rejecting RFRA
challenge to prison rule limiting prisoners’ latitude in changing their names); Ulmann v. Anderson, No. Civ. 02-405-JD,
2004 WL 883221, at *8 (D.N.H. Apr. 26, 2004) (entering
summary judgment for defendants on detainee’s RLUIPA
claim, holding that denial of request for a glass menorah for
security reasons satisfied strict scrutiny); Farrow v. Stanley,
No. CIV.02-567-B, 2004 WL 224602, at *10 (D.N.H. Feb. 5,
2004) (rejecting RLUIPA claim for a Native American sweat
lodge because, inter alia, its use would require “intensive
monitoring” and its construction “would require inmates to
have access to tools that would create security concerns”);
Charles, 220 F. Supp. 2d at 946-47 (granting summary judgment for prison officials on Muslim prisoner’s RLUIPA claim
based on denial of request for two annual religious feasts,
citing compelling “security and resource concerns”); Jones v.
Roth, 950 F. Supp. 254, 257-58 (N.D. Ill. 1996) (rejecting
RFRA challenge to prison policy regulating the time and
manner of prayer).
These decisions illustrate the seriousness with which reviewing courts take the States’ interests in security and order.
The claims in these cases (and many others) were rejected,
not because the claimants had failed to show a substantial
burden on religion, but because the challenged regulations
were deemed narrowly tailored to the government’s compelling interest in the safety and security of its prisons. Thus, not
only insincere claims, but also sincere claims that colorably
24
threaten prison security, will fail on the merits—and typically
on dispositive pre-trial motions.
4. Nor is there any support for the claim by RLUIPA’s detractors that the statute will subject prison administrators to a
flood of lawsuits. Indeed, in passing RLUIPA, Congress had
before it a letter supporting RLUIPA’s passage from the
authorities overseeing federal prisons. The letter reported
that, in the six years that the Bureau of Prisons (“BOP”) had
been required to apply RFRA—which applies the same substantial burden standard as RLUIPA—BOP had not been
overwhelmed by frivolous prisoner lawsuits. The letter stated
unequivocally that “RFRA has been in effect in the Federal
Prison system for six years and compliance with that statute
has not been an unreasonable burden to the Federal prison
system.” 146 Cong. Rec. at S7776 (July 19, 2000, letter
from Assistant Attorney General Robert Raben to Sen. Orrin
Hatch).
BOP’s sanguine view was amply justified by the text of
RLUIPA. To minimize the risk that claims under RLUIPA
would lead to unreasonable litigation burdens, Congress expressly subjected such claims to the Prisoner Litigation Reform Act. See RLUIPA § 4(e), 42 U.S.C. § 2000cc-2(e)
(“Nothing in this chapter shall be construed to amend or repeal the Prison Litigation Reform Act of 1995 (including provisions of law amended by that Act).”). The Prison Litigation
Reform Act of 1995 (“PLRA”)11 cabins the prospective relief
available to prisoners in civil actions related to prison conditions (PLRA § 802, 18 U.S.C. § 3626), requires exhaustion of
administrative remedies prior to filing a lawsuit (PLRA § 803,
42 U.S.C. § 1997e), amplifies the procedural requirements for
filing in forma pauperis actions (PLRA § 804, 28 U.S.C.
§ 1915), and adds a judicial screening mechanism to review
11
Pub. L. No. 104-134, tit. VIII §§ 801-810, 110 Stat. 1321-66, 132166 to 1321-77 (1996) (codified in scattered sections of titles 18, 28, and 42
of the United States Code).
25
potentially frivolous actions (PLRA § 805, 28 U.S.C.
§ 1915A). As the Senate sponsors of RLUIPA noted, “[t]he
Prison Litigation Reform Act is working effectively to control
frivolous prisoner litigation across the board, without barring
meritorious claims equally with frivolous ones.” Joint Statement, 146 Cong. Rec. at S7775. By subjecting RLUIPA actions to the requirements of the PLRA, Congress ensured that
courts and prison administrators would not be overwhelmed
by new prisoner litigation.
In fact, as recent studies have shown, neither RLUIPA nor
RFRA has had any measurable impact on the volume of prisoner lawsuits. See Margo Schlanger, Inmate Litigation, 116
Harv. L. Rev. 1555, 1583 tbl. I.A, 1584 fig. I.A, 1586 fig. I.B
(2003) (showing that the enactment of RFRA was not followed by a noticeable increase in the number of federal civil
rights claims by prisoners (as a proportion of the overall
prison population), and RLUIPA’s enactment was in fact
followed by a slight decrease in such suits); accord Derek L.
Gaubatz, RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA’s Prisoner Provisions, 28 Harv. J.L.
& Pub. Pol’y (forthcoming 2005) (finding that only 59
RLUIPA cases were filed in the 50 state prison systems in the
four years following the statute’s passage). Furthermore, as a
general rule, statutory claims for religious accommodation are
only a fraction of the prisoner claims faced by prison administrators. See Joint Statement at S7775 (citing studies showing “that religious liberty claims are a very small percentage
of all prisoner claims, that RFRA led to only a very slight increase in the number of such claims, and that on average
RFRA claims were more meritorious than most prisoner
claims”); see also Lee Boothby & Nicholas P. Miller, Prisoner Claims for Religious Freedom and State RFRAs, 32 U.C.
Davis L. Rev. 573 (1999). There is, therefore, no truth to the
suggestion that RLUIPA has resulted in waves of frivolous or
malicious actions from prisoners.
* * * * *
26
In short, far from providing a basis to second-guess Congress’s policy judgment, the evidence amply confirms that
RLUIPA not only serves the important goal of protecting individual prisoners’ rights to exercise their religion, but also
serves the over-riding purpose of prisoner rehabilitation. The
available evidence also confirms the judgment expressed by
the Fourth Circuit “that RLUIPA should not hamstring
[states’] ability” to maintain safety and order in [their] prisons. Madison, 355 F.3d at 321.
CONCLUSION
The judgment of the Court of Appeals should be reversed.
Respectfully submitted,
GENE C. SCHAERR*
DAVID S. PETRON
RICHARD H. MENARD JR.
MICHAEL C. SOULES
DANIEL I. RABINOWITZ
SIDLEY AUSTIN BROWN
& WOOD LLP
1501 K Street, N.W.
Washington, D.C. 20005
Counsel for Amici Curiae
December 20, 2004
* Counsel of Record
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APPENDIX
The American Correctional Chaplains Association
(ACCA) is a national association of professional chaplains,
founded in 1886 and affiliated with the American Correctional Association. The ACCA membership represents chaplains of all faith groups in federal, state and local jurisdictions. The mission of the ACCA is to serve as a professional
organization for pastoral care personnel in the corrections
field; provide a network for the sharing of information and
resources amongst its members and with corrections administrators; to formulate standards for chaplaincy and religious
programming in correctional facilities; develop and implement certification for correctional chaplains (recognized as
the industry standard); and communicate the religious and
spiritual aspects of corrections to the larger community.
Robert C. Lynn, a former president of ACCA, currently
serves as treasurer of the Association's Northwest region and
as pastor of the Skyline Christian Church in Takoma, Washington. He was Religious Program Administrator for the
Washington State Department of Corrections for 14 years,
and currently serves on the Department's Religious Advisory
Committee. Rev. Lynn also served 31 years as an Air Force
chaplain before retiring as Command Chaplain, Fourth Air
Force, at the rank of Colonel.
Walter J. Dickey and Chase Riveland (collectively, the
“corrections amici”) are former senior state corrections officials with extensive experience in prison management matters.
Mr. Dickey has served as Administrator of the Wisconsin Department of Corrections and as Chair of Governor
Tommy Thompson’s Task Force on Corrections, and as
a member of the U.S. Justice Department’s Sessions on
Sentencing and Corrections. A widely published author
on corrections issues, Mr. Dickey also has taught at the
University of Wisconsin–Madison Law School since
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1976.
Mr. Riveland has served as Secretary of Corrections for
the State of Washington, Executive Director of the Colorado Department of Corrections, and Deputy Director of
the Wisconsin Department of Corrections. Mr. Riveland
currently teaches corrections-related courses at the National Institute of Corrections Academy in Colorado and
serves as an independent corrections consultant.
Ralph Benning, Ira W. Madison, Jerry Charles, and the
Prison Law Office (collectively, the “prisoner amici”) are
prisoners or attorneys representing prisoners who have successfully defended the constitutionality of RLUIPA in every
one of the cases—other than the decision below—to reach the
federal circuit courts on this issue. The prisoner amici have
directly benefited and continue to benefit from RLUIPA’s
promotion of religious accommodations in prison, and in
three of their four cases, litigation under RLUIPA is ongoing.
Mr. Benning is a Georgia prisoner and “Torah observant
Jew” who filed suit under RLUIPA when he was denied
a kosher diet and a yarmulke. After Mr. Benning prevailed in a motion to dismiss in the district court, Georgia sought immediate appellate review under Fed. R.
Civ. P. 54(b) and 28 U.S.C. § 1292(b). The Eleventh
Circuit affirmed. Benning v. Georgia, Nos. 04-10979,
04-11044, 2004 WL 2749172 (11th Cir. Dec. 2, 2004).
The Eleventh Circuit’s mandate has not yet issued.
Mr. Madison, a Virginia state prisoner, filed suit under
RLUIPA when his requests for a kosher diet were denied
by Virginia prison officials. The district court granted
summary judgment to the defendants on Mr. Madison’s
RLUIPA claims, and the Fourth Circuit reversed. See
Madison v. Riter, 355 F.3d 310 (4th Cir. 2003). The defendants sought this Court’s review of the Fourth Circuit’s ruling, and that petition for certiorari remains
pending, 72 U.S.L.W. 3658 (U.S. 2004) (No. 04-1404).
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Mr. Charles, a Wisconsin prisoner who had been prohibited from possessing Islamic prayer oil in his cell,
challenged that denial under RLUIPA. The district court
ruled that this denial violated RLUIPA, Charles v. Verhagen, 220 F. Supp. 2d 937 (W.D. Wis. 2002), and subsequently upheld the constitutionality of RLUIPA, 220
F. Supp. 2d 955 (W.D. Wis. 2002). The Seventh Circuit
affirmed. Charles v. Verhagen, 348 F.3d 601 (7th Cir.
2003). As a result of his litigation success, Mr. Charles
is currently permitted to possess prayer oil.
The Prison Law Office is a nonprofit public interest law
firm devoted to protecting the constitutional rights of
California prisoners. Located just outside the gates of
San Quentin, it has been in the forefront of legal efforts
to enforce the Constitution and other laws inside the
walls of California’s prisons. It currently represents a
class of Muslim prisoners (collectively, the “Mayweathers plaintiffs”) in litigation that, over the past seven
years, has sought accommodations to allow the plaintiffs
(i) to attend Friday afternoon religious services known
as Jumu’ah and (ii) to wear half-inch beards. The district court originally granted the Mayweathers plaintiffs
preliminary injunctive relief, and California appealed.
The Ninth Circuit affirmed the preliminary injunctions,
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir.
2002), and this Court denied the defendants’ petition for
certiorari, Alameida v. Mayweathers, 124 S. Ct. 66
(2003). Recently, the district court granted summary
judgment in favor of the plaintiffs and entered a permanent injunction, Mayweathers v. Terhune, 328 F. Supp.
2d 1086 (E.D. Cal. 2004), and the defendants have again
appealed to the Ninth Circuit, Nos. 04-16470, 04-16861
(9th Cir. July 28, 2004).
Prison Fellowship is a non-profit, charitable religious organization founded in 1976 by Charles W. Colson and cur-
4a
rently operating in every state and in 106 countries. It ministers to prisoners, ex-prisoners, and their families.
Jewish Prisoner Services International (JPSI) originated
as an agency of B’nai B’rith International and was restructured nine years ago into a separate non-profit chaplaincy
service. JPSI works in conjunction with all major branches of
Judaism and the Jewish Community’s other social services
agencies to assist Jewish prisoners and their families worldwide. In addition to conducting its own programs, JPSI provides support to localized Jewish chaplaincy programs and is
extensively involved with various corrections industry organizations.
Aleph is a non-profit Jewish educational, humanitarian, and
advocacy organization. Aleph helps Jewish inmates and their
families to maintain essential connections to each other and to
their spiritual heritage and provides educational materials to
children of Jewish inmates, counseling to spouses, parents
and children, and financial assistance to families in need.
The American Catholic Correctional Chaplains Association (ACCCA) is a national Catholic organization committed
to promoting the principles of restorative justice for all involved with, or affected by, the criminal justice system. Restorative justice is Bible-based and views crime as affecting
victims, offenders, their families and the community at large.
Adventist Chaplaincy Ministries (ACM) is comprised of
trained chaplains from the Seventh-day Adventist Church.
Through the ministry of these chaplains, ACM responds to
the spiritual needs of those within unique institutional situations, including the correctional, educational, healthcare, and
military settings.
Citizens United for the Rehabilitation of Errants
(CURE) is a national membership organization dedicated to
reducing crime through reform of the criminal justice system,
chiefly prison reform. Most of CURE's 15,000 members are
prisoners, former prisoners, and families of prisoners.
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CURE's two goals are (1) to use prisons only for those who
have to be in them, and (2) for those who have to be in them,
to provide them all the rehabilitative opportunities they need
to turn their lives around.
The John Howard Association (JHA) is a 103-year-old
corrections reform organization that concerns itself with the
conditions of confinement in prisons, jails, and juvenile detention centers in Illinois and elsewhere, and that promotes
fair, safe, and humane corrections policies and practices that
meet the needs of both the offender and the community. JHA
recruits and trains citizen volunteers who participate in over
70 correctional facility monitoring visits each year. In these
monitoring visits JHA staff members and volunteers speak to
countless corrections officials, chaplains, program administrators, and incarcerated individuals, and observe correctional
programs in action.
The Shambhala Prison Community (SPC) and the Prison
Dharma Network (PDN) are involved in Buddhist prison
ministry. As practitioners of a minority religion and one that
is frequently misunderstood, SPC and PDN often encounter
resistance when prisoners request their services. The protections afforded by RLUIPA enhance SPC’s and PDN’s ability
to bring their services to persons confined to state prisons.